Decisions

In January of 2021, the Information Commissioner initiated a systemic investigation into Library and Archives Canada’s (LAC) delayed responses to access requests. This investigation was prompted by the Office of the Information Commissioner’s (OIC) investigations conducted over a number of years, resulting in findings that LAC was not responding to access requests by the legislative deadlines, a trend that worsened during the pandemic.

The complaint is well founded since the investigation found that for the period under investigation, almost 80% of the requests completed by LAC did not comply with the timeframes set out in the Act.

In January 2022, the Minister of Canadian Heritage, as head of LAC was informed of the Commissioner’s findings. A total of ten (10) recommendations were made to the Minister and a response to the Commissioner’s recommendations was received in February 2022.

In April 2022, the Commissioner tabled a special report in Parliament pursuant to paragraph 39(1) of the Act. The special report sheds light on issues within LAC and also draws Parliament’s attention to two broader challenges facing Canada’s access to information system:

• the manner in which consultations on access requests are conducted between institutions; and
• the lack of a Government-wide framework for the declassification of records.

The complainant alleged that Parks Canada had improperly withheld under subsection 19(1) (personal information), paragraph 20(1)(c) (financial impact on third party) and paragraph 20(1)(d) (negotiations by a third party) of the Access to Information Act, portions of Liricon Capital Ltd.’s (Liricon) draft feasibility study for Aerial Tram and Mount Norquay Ski Area Re-Development, dated May 18, 2018. The complaint falls within paragraph 30(1)(a) of the Act.

Personal information withheld under subsection 19(1) and information relating to Sulphur Mountain Gondola were removed from the scope of the complaint.

During the investigation, Parks Canada decided to no longer rely on paragraphs 20(1)(c) and (d) to withhold information, instead relying on paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information).

The institution and third party did not demonstrate that the requirements of paragraph 20(1)(b) were met where they no longer oppose disclosure and where certain information is publicly available.

The Information Commissioner ordered that Parks Canada disclose specific information at issue.

Parks Canada gave notice that it would implement the order.

The complaint is well founded.

The complainant alleged that Trans Mountain Corporation (TMC) had improperly withheld information under paragraphs 21(1)(a) (advice or recommendations), 21(1)(b) (accounts of consultations or deliberations) and section 26 (information to be published) of the Access to Information Act in response to an access request for documents pertaining to the Trans Mountain Project and related to specific TMC Board of Directors meetings held in 2019.

During the course of the investigation, TMC informed the OIC that it had decided to continue to withhold all of the information responsive to the request, in accordance with, not only the three exemptions mentioned above, but also the following twelve exemptions: paragraphs 13(1)(c) (confidential information from government bodies), 18(a) (government financial, commercial, scientific or technical information), 18(b) (competitive position of government institutions), 20(1)(a) (third-party trade secrets), 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), 20(1)(b.1) (third-party emergency management plans), 20(1)(c) (financial impact on a third party), 20(1)(d) (negotiations by a third party), and sections 17 (safety of individuals), 22 (testing or auditing procedures or techniques), 22.1 (draft internal audit reports and their working papers), and 23 (legal advice and litigation privilege) of the Act.

TMC failed to convince the Commissioner that it had applied the Act correctly to the entirety of the information found in the record and did not provide sufficient details for the Commissioner to decide whether it had reasonably exercised its discretion to decide not to release the information. Accordingly, the Commissioner found that further disclosure was warranted.

As a result, the Commissioner provided the President and Chief Executive Officer of TMC with her initial report setting out her intended order to disclose all information withheld under the Act.

Following receipt of the Commissioner’s intended order, the President and Chief Executive Officer of TMC gave the Commissioner notice that he would be partially implementing her order by releasing portions of the records. Thereafter, the complainant indicated to the OIC that they were satisfied with the additional information that had been released. Therefore, an order was no longer required.

The complaint is well founded.

The complainant alleged that the Department of Finance Canada (Finance) failed to respond to a request for information within the time limits set out in the Access to Information Act.

The Information Commissioner found that the delay in responding to the requests mainly rests with Finance’s Office of Primary Interest, the Federal-Provincial Relations and Social Policy Branch, which has failed to provide records to Finance’s Access to Information and Privacy office in a timely fashion.

The Information Commissioner ordered the Minister of Finance to provide a final response to the request for information submitted on July 22, 2020 forthwith.

Finance gave notice that it would be implementing the order and respond to the request on a priority basis.

The complaint is well founded.